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TROY MOZELL v. COMMISSIONER OF CORRECTION

(AC 34568)

Beach, Alvord and Bear, Js.

Argued September 24, 2013—officially released January 28, 2014

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

Cheryl A. Juniewic, assigned counsel, for the appellant (petitioner).

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and David Clifton, deputy assistant

state’s attorney, for the appellee (respondent).
Opinion

BEACH, J. The petitioner, Troy Mozell, appeals following the denial of his petition for certification to

appeal from the judgment of the habeas court dismissing the fourth count of his petition for a writ of habeas

corpus ‘‘with prejudice.’’ The petitioner claims that the

court erred in (1) denying his oral motion to amend his

petition, and (2) accepting his withdrawal of count four

of his petition ‘‘with prejudice.’’ The petitioner also

claims that the court abused its discretion in denying

his petition for certification to appeal. We dismiss the

appeal with respect to the first claim. With respect to

the second claim, we agree that the court abused its

discretion in denying the petition for certification to

appeal, but conclude that the petitioner cannot prevail

on the merits of his claim.

This court has previously set forth the following facts

that the jury reasonably could have found at the petitioner’s underlying criminal trial. In March, 1991, the

petitioner and others were under surveillance by the

New Haven police as suspected members of a drug ring.

State v. Mozell, 36 Conn. App. 672, 673, 652 A.2d 1060

(1995). After obtaining search warrants, the police

found a .38 caliber handgun at the residence of Nicole

Lowery and a safe containing a large quantity of crack

cocaine at a residence of another suspected member

of the drug ring. Id. The petitioner was arrested and

later convicted, following a jury trial, of possession

of narcotics with intent to sell in violation of General

Statutes § 21a-278, and conspiracy to sell narcotics in

violation of General Statutes §§ 21a-278 and 53a-48. Id.

His conviction was upheld on appeal. Id., 672. In his first

habeas petition, the petitioner alleged that his appellate

counsel was ineffective forfailing to raise various issues

on direct appeal. Mozell v. Commissioner of Correction, 51 Conn. App. 818, 820, 725 A.2d 971 (1999). The

habeas court’s dismissal of his petition was upheld on

appeal. Id., 824. The petitioner filed a second habeas

petition, which the habeas court denied. The denial of

his petition by the habeas court was affirmed on appeal.

See Mozell v. Commissioner of Correction, 120 Conn.

App. 902, 990 A.2d 391, cert. denied, 297 Conn. 906, 995

A.2d 634 (2010).

In September, 2009, the petitioner filed his third

habeas petition, which is the subject of this appeal.

In his second amended petition, the petitioner alleged

ineffective assistance of trial counsel (count one),

direct appellate counsel (count two), first habeas counsel (count three), and second habeas counsel (count

four). The respondent, the Commissioner of Correction,

moved to dismiss counts one through three of the second amended petition on the ground that those counts

‘‘present the same grounds as a prior petition previously

denied and [fail] to state new facts or proffer new evidence not reasonably available at the time of the
prior petition.’’

On February 22, 2012, the day on which the habeas

trial was to begin, the court granted the respondent’s

motion to dismiss, reasoning that ‘‘counts one, two and

three [of the second amended petition] involve the same

or substantially the same grounds that have or could

have been raised in prior petitions, seek the same relief,

and fail to allege any facts that were not reasonably

available to the petitioner at the time the other petitions

were pursued.’’ The court noted that ‘‘[t]hat leaves us

with count four, which is an ineffective assistance claim

against prior habeas counsel . . . .’’ When the court

inquired as to whether the petitioner’s counsel was

ready to proceed on count four, the petitioner’s counsel

asked the court for permission to amend the habeas

petition, and the court, at counsel’s request, permitted

the petitioner to address the court personally to state

the nature of the claims sought to be added. After the

court denied this request, the petitioner, addressing the

court himself, stated, ‘‘I wish to move to withdraw my

habeas, then. There’s no sense of going through the

whole process . . . .’’ The court called a recess to give

the petitioner a chance to talk to his counsel.

Following the recess, the petitioner’s counsel

informed the court that the petitioner still wanted to

withdraw the habeas petition.1 The court stated that if

the petitioner wanted to withdraw the fourth count,

the court would accept the withdrawal, but only with

prejudice.2 The court explained the ramifications, and,

after providing the petitioner with another opportunity

to discuss the matter with counsel, asked the petitioner

if he still wanted to withdraw his petition, to which

question the petitioner answered affirmatively. The

court accepted the withdrawal and the words ‘‘with

prejudice’’ were added to the withdrawal form. The

court thereafter denied the petition for certification to

appeal from the habeas court’s judgment. This appeal

followed.

We begin by setting forth the applicable standard of

review and procedural hurdles that the petitioner must

surmount to obtain appellate review of the merits of a

habeas court’s denial of the habeas petition following

denial of certification to appeal. ‘‘In Simms v. Warden,

229 Conn. 178, 187, 640 A.2d 601 (1994), we concluded

that . . . [General Statutes] § 52-470 (b) prevents a

reviewing court from hearing the merits of a habeas

appeal following the denial of certification to appeal

unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas

court. In Simms v. Warden, 230 Conn. 608, 615–16, 646

A.2d 126 (1994), we incorporated the factors adopted

by the United States Supreme Court in Lozada v. Deeds,

498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956

(1991), as the appropriate standard for determining

whether the habeas court abused its discretion in deny-
ing certification to appeal. This standard requires the

petitioner to demonstrate that the issues are debatable

among jurists of reason; that a court could resolve the

issues [in a different manner]; or that the questions are

adequate to deserve encouragement to proceed further.

. . . A petitioner who establishes an abuse of discretion

through one of the factors listed above must then demonstrate that the judgment of the habeas court should

be reversed on its merits. . . . In determining whether

the habeas court abused its discretion in denying the

petitioner’s request for certification, we necessarily

must consider the merits of the petitioner’s underlying

claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Citations omitted; emphasis in original; internal

quotation marks omitted.) Castonguay v. Commissioner of Correction, 300 Conn. 649, 657–58, 16 A.3d

676 (2011).

I

The petitioner first claims that the court abused its

discretion in denying his oral motion to amend his petition.3 We conclude that the court properly denied the

petition for certification to appeal with regard to this

claim.

‘‘We will not disturb a habeas court’s grant or denial

of permission to amend a pleading in the absence of a

clear abuse of discretion. . . . Pursuant to Practice

Book § 23-32, [t]he petitioner may amend the petition

at any time prior to the filing of the return. Following

the return, any pleading may be amended with leave

of the judicial authority for good cause shown. . . .

While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments

should be made seasonably. Factors to be considered

in passing on a motion to amend are the length of delay,

fairness to the opposing parties and the negligence, if

any, of the party offering the amendment. . . . The

motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment

of pleadings so far as necessary to prevent unreasonable

delay ofthe trial.’’(Citations omitted; emphasis omitted;

internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn. App. 1, 6–7, 916 A.2d

864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

At the petitioner’s criminal trial, the gun found at

Lowery’s residence was admitted into evidence over

his objection. See State v. Mozell, supra, 36 Conn. App.

674. On February 22, 2012, at the habeas trial at issue,

the petitioner himself addressed the court following the

court’s granting of the respondent’s motion to dismiss.

He asked that the court permit him to amend his petition

to include a claim that the trial court violated his right

to due process by (1) permitting into evidence Lowery’s

gun and (2) by permitting the introduction into evidence

of ‘‘gang evidence’’ at his criminal trial. The court denied
the petitioner’s request and reasoned that, with reference to Practice Book § 23-32, the return already had

been filed and that the petitioner had not shown

good cause.

It was not an abuse of discretion for the court not

to allow the petitioner to amend his petition on the

day of trial to add additional claims regarding alleged

improprieties that had occurred at his criminal trial.

See Pierce v. Commissioner of Correction, supra, 100

Conn. App. 7 (not abuse of discretion for habeas court

to deny motion to amend petition where return already

filed and motion to amend filed two weeks prior to

habeas trial). Additionally, on direct appeal in State v.

Mozell, supra, 36 Conn. App. 677–78, this court already

had held that the trial court abused its discretion in

admitting Lowery’s gun into evidence and allowing the

testimony of Lowery concerning the gun, but that the

errors were harmless.

Because this issue is not debatable among jurists of

reason and does not deserve encouragement to proceed

further, and a court could not resolve the issue in a

different manner; see Simms v. Warden, supra, 230

Conn. 618; the habeas court did not abuse its discretion

in denying the petition for certification to appeal from

its denial of the habeas petition on this ground.

II

The petitioner next claims that the court erred in

accepting his withdrawal of the fourth count of his

petition ‘‘with prejudice.’’ We are not persuaded.

We begin by addressing the respondent’s argument

that this claim is not ripe for review. The respondent

reasons that the claim is not justiciable because withdrawal with prejudice was not necessarily binding on

any subsequent habeas court and that any alleged prejudice is merely speculative until a future attempt to refile

the petition is frustrated. We disagree.

‘‘Ripeness is a justiciability doctrine, which implicates the court’s subject matter jurisdiction.’’ Bloom v.

Miklovich, 111 Conn. App. 323, 336, 958 A.2d 1283

(2008). An issue regarding justiciability presents a question of law, over which review is plenary. See Esposito

v. Specyalski, 268 Conn. 336, 347–48, 844 A.2d 211

(2004). ‘‘[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in

abstract disagreements . . . . Accordingly, in

determining whether a case is ripe, a trial court must

be satisfied that the case before [it] does not present

a hypothetical injury or a claim contingent [on] some

event that has not and indeed may never transpire.’’

(Internal quotation marks omitted.) Janulawicz v.

Commissioner of Correction, 310 Conn. 265, 271, 77

A.3d 113 (2013).

We conclude that the petitioner’s claim is ripe for
review. Although the petitioner may choose not to refile

the fourth count in a new petition, or perhaps may

somehow be able to raise the claim in some forum in

the future, the withdrawal of that count ‘‘with prejudice’’ does not constitute a hypothetical injury4 contingent on a future event. The court’s decision constituted

a final adjudication ending this matter and concluded

the petitioner’s rights with respect to this case. The

term ‘‘with prejudice’’ means ‘‘[w]ith loss of all rights;

in a way that finally disposes of a party’s claim and

bars any future action on that claim . . . .’’ Black’s

Law Dictionary (9th Ed. 2009); compare Schmier v.

McDonald’s, LLC, 569 F.3d 1240, 1242 (10th Cir. 2009)

(under [Federal Rules of Civil Procedure] voluntary

dismissal with prejudice operates as final adjudication

on merits);5 Feinsod v. Noon, 261 N.J. Super. 82, 84, 617

A.2d 1234 (App. Div. 1992) (withdrawal with prejudice

amounts to final disposition on matter).

Having determined that the claim is ripe, we now

turn to the merits. The petitioner argues that the court

erred in accepting his withdrawal ‘‘with prejudice’’

because a withdrawal with prejudice does not and

should not exist within our jurisprudence. He reasons

that the voluntariness of a withdrawal is nullified when

a court accepts a withdrawal with prejudice. He further

contends that the habeas court may grant a dismissal

only for one or more of the reasons listed in Practice

Book § 23-29 and that ‘‘[p]rior to the court granting

a dismissal, an evidentiary hearing6 must be held on

the issue.’’7

The disposition of withdrawal with prejudice exists

within Connecticut jurisprudence. See Fine v. Commissioner of Correction, 147 Conn. App. 136, A.3d

(2013)(discussing canvass requirements for withdrawal

with prejudice); see also Mason v. Commissioner of

Correction, 80 Conn. App. 142, 144 n.1, 832 A.2d 1216

(2003), cert. denied, 267 Conn. 910, 840 A.2d 1172

(2004).Indeed,the disposition of withdrawal with prejudice is a logically compelling disposition in some circumstances. A plaintiff is generally empowered, though

not without limitation, to withdraw a complaint before

commencement of a hearing on the merits. See General

Statutes § 52-80. A plaintiff is not entitled to withdraw

a complaint without consequence at such hearing. See,

e.g., Melendez v. Commissioner of Correction, 141

Conn. App. 836, 62 A.3d 629, cert. denied, 310 Conn.

921, 77 A.3d 143 (2013). The disposition of withdrawal

with prejudice is well suited to the situation here. The

petitioner, therefore, cannot prevail on his claim that

the marking of ‘‘with prejudice’’ was erroneous on the

ground that it did not precisely fall into a category

specified in Practice Book § 23-29.8

The withdrawal with prejudice did not violate the

petitioner’s constitutional rights; the record shows it

was knowing, voluntary and intelligent.9 Cf. Fine v.
Commissioner of Correction, supra, 147 Conn. App.

147;10 see also Michigan Surgery Investment, LLC v.

Arman, 627 F.3d 572, 575 (6th Cir. 2010) (before converting motion for voluntary dismissal without prejudice into dismissal with prejudice, under Federal Rules

of Civil Procedure, court must [1] give notice of intention to do so, [2] give plaintiff opportunity to be heard

in opposition and [3] must give plaintiff opportunity to

withdraw request for voluntary dismissal and proceed

with litigation).11 After the petitioner asked to withdraw

the fourth count, the court informed him that the withdrawal would be ‘‘with prejudice.’’ The court explained

to the petitioner the ‘‘potential ramifications’’ of a withdrawal with prejudice, stating: ‘‘That doesn’t mean that

you can’t bring another petition in the future . . . .

But what will happen, likely, is, when you bring that

new petition—it could be before me if I’m still here; it

could be before another judge—the [respondent] is

going to argue that . . . you were allowed to withdraw

your last petition with prejudice . . . . It’s a successive

petition; that we’re all wound up here ready to go; that

we have witnesses set up, and everybody is prepared

to go forward. Whether another judge would agree with

that or not, I don’t know. I can’t tell you what would

happen, but it’s a risk that you’re taking, and that’s

what you need to understand.’’ The court then gave the

petitioner time to discuss the matter with his counsel,

after which the court asked the petitioner: ‘‘[Y]ou have

decided after talking to your attorney that you do, in

fact, wish to withdraw your case, is that right?’’ The

petitioner answered: ‘‘Yes.’’ The court adequately

informed the petitioner of the ramifications,12 and the

petitioner still wanted to proceed with the withdrawal.

The court acted within its discretion in accepting

the withdrawal and adding, ‘‘with prejudice.’’ The court

explained: ‘‘[T]oo much has happened today in connection with this case to allow it to be withdrawn not with

prejudice . . . . And under the circumstances—many

of which have been expressed today by [the respondent’s counsel]—that is why I am adding the with prejudice in this particular case.’’ The respondent’s counsel

had expressed the notion that the petitioner should

not be permitted to withdraw the fourth count without

prejudice. Witnesses had been subpoenaed and were

in court ready to proceed; expense such as setting up

videoconferencing for a witness in Nevada had been

incurred; evidence had begun, according to the respondent’s counsel, in that some exhibits had already been

admitted in full;13 this was the petitioner’s third habeas

action; and that ‘‘[t]his is not exactly a new thing for[the

petitioner] to get to trial and be unhappy and attempt to

withdraw.’’ Habeas courts are given wide latitude in

fashioning remedies. See Negron v. Warden, 180 Conn.

153, 166 n.6, 429 A.2d 841 (1980) (‘‘[H]abeas corpus has

traditionally been regarded as governed by equitable

principles. . . . Among them is the principle that a suit-
or’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.’’ [Internal quotation

marks omitted.]).

We determine that the court abused its discretion in

denying the petition for certification to appeal on this

claim because it is debatable among jurists of reason.

We, conclude, however, that the petitioner cannot prevail on the merits of this claim because the court acted

within its discretion in accepting the withdrawal of the

fourth count but only ‘‘with prejudice.’’

The appeal is dismissed as to the first claim and the

judgment is affirmed as to the second claim.

In this opinion the other judges concurred.

1 The petitioner’s counsel asked to ‘‘withdraw the current habeas petition

. . . .’’ The court later clarified that it had granted the respondent’s motion

to dismiss counts one through three, and asked the petitioner whether he

was currently seeking to withdraw the remaining fourth count. To which

question, the petitioner answered, ‘‘Yes.’’ The judgment file indicates that

counts one through three were dismissed and count four was ‘‘withdrawn

. . . .’’ The petitioner makes no claim on appeal regarding the dismissal of

counts one through three.

2 For reasons we will discuss, we hold that a withdrawal ‘‘with prejudice’’

is the functional equivalent of a dismissal.

3 The petitioner also claims that the court violated his right to due process

under the state and federal constitutions when it denied his oral motion to

amend his habeas petition. There is no merit to this claim.

4 The injury at this point, of course, is that this case concluded without

affording relief to the petitioner.

5 Precisely like ‘‘withdrawal with prejudice,’’ a ‘‘voluntary dismissal’’ pursuant to the Federal Rules of Civil Procedure is a disposition initiated by a

plaintiff, which, if the court decides to dispose of the cause of action, is a

dismissal ‘‘with prejudice.’’ See Cabrera v. Esso Standard Oil Co (Puerto

Rico), Inc., 723 F.3d 82, 87 (1st Cir. 2013) (‘‘Rule 41 [a] [2] permits a plaintiff

to request dismissal of an action by court order, on terms that the court

considers proper. . . . The rule . . . provides that such a dismissal is without prejudice, [u]nless the [court’s] order states otherwise. . . . Accordingly, dismissal without prejudice is the norm, unless the court finds that the

defendant will suffer legal prejudice.’’ [Citations omitted; internal quotation

marks omitted.]).

6 The petitioner has not indicated why an evidentiary hearing was required

to resolve the issues presented in this appeal. He cites Mercer v. Commissioner of Correction, 230 Conn. 88, 644 A.2d 340 (1994). Mercer, however,

stands for the rather unremarkable proposition that determinations of the

merits of a habeas corpus action ordinarily require evidentiary hearings.

The case before us is in a different posture altogether.

7 Practice Book § 23-29 provides: ‘‘The judicial authority may, at any time,

upon its own motion or upon motion of the respondent, dismiss the petition,

or any count thereof, if it determines that:

‘‘(1) the court lacks jurisdiction;

‘‘(2) the petition, or a count thereof, fails to state a claim upon which

habeas corpus relief can be granted;

‘‘(3) the petition presents the same ground as a prior petition previously

denied and fails to state new facts or to proffer new evidence not reasonably

available at the time of the prior petition;

‘‘(4) the claims asserted in the petition are moot or premature;

‘‘(5) any otherlegally sufficient ground for dismissal of the petition exists.’’

8 But see Practice Book § 23-29 (5). Under that subsection, the court may

dismiss the petition or any count thereof if it determines that ‘‘any other

legally sufficient ground for dismissal of the petition exists.’’ Practice Book

§ 23-29 (5).

Nevertheless, the petitioner’s argument that the court failed to provide

him with a hearing pursuant to Practice Book § 23-29 (3) fails. Whatever

the requirements of Practice Book § 23-29 (3) are, they do not apply even

if the court had dismissed count four because the fourth count itself was

not raised in a prior habeas petition.

9 The petitioner cites no authority for the proposition that his constitu-
tional rights were violated, and we conclude that there is no merit to this

claim.

10 Fine sets forth the procedures to be followed for a withdrawal with

prejudice, but concluded that the record was inadequate to determine in

that case whether such a withdrawal occurred. We conclude in this case

that a court, under certain circumstances, may accept a withdrawal only

with prejudice. Both a withdrawal with prejudice and a dismissal end a case

with finality and are functionally one in the same. A court is permitted under

Practice Book § 23-29 (5) to end a case via a dismissal, sua sponte, for any

‘‘legally sufficient ground . . . .’’ A court, then, by analogy, is also permitted

to end a case via the acceptance of a withdrawal with the sua sponte

addition of ‘‘with prejudice,’’ but only so long as the constitutional safeguards

addressed in Fine are followed.

11 By analogy to the Federal Rules of Civil Procedure, a petitioner’s request

to withdraw can be converted into a withdrawal with prejudice, as long as

certain safeguards are in place.

12 Prior to finally accepting the withdrawal with prejudice, the court

informed the petitioner that if the court accepted the withdrawal, there

could well be significant impediments to bringing the same claims again.

The court stated that it could not predict with certainty what might happen

but said that the respondent would likely argue that he had been prepared

before and that the petitioner ought not be able to bring the same claim

again. In light of our law regarding successive petitions, the court’s advice

was substantially accurate.

13 The petitioner does not argue that he should have been permitted to

withdraw his petition under General Statutes § 52-80 (‘‘The plaintiff may

withdraw any action . . . before the commencement of a hearing on the

merits thereof. After the commencement of a hearing on an issue of fact

in any such action, the plaintiff may withdraw such action . . . only by leave

of court for cause shown.’’). He was, nonetheless, permitted to withdraw his

petition and although § 52-80 does not say what happens when a withdrawal

is accomplished after commencement of trial, its implication is clear.